TRANSPORTATION a Design-Build Done Right™ Deeper Dive Addressing Unique Technical Issues in Transportation Design-Build

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KEY FACTORS TO ADDRESS WHEN CONSIDERING ALTERNATIVE PROJECT DELIVERY IN TRANSPORTATION A Design-Build Done Right™ Deeper Dive Addressing Unique Technical Issues in Transportation Design-Build

Table of Contents

Introduction ...... 3

Use of Alternative Technical Concepts (ATCs) in Transportation Design-Build ...... 4

Right-of-Way Acquisition in Transportation Design-Build ...... 11

Utilities Management in Transportation Design-Build ...... 19

Maintenance of Tra c (MOT) in Transportation Design-Build...... 26

Environmental Analysis and Permitting in Transportation Design-Build ...... 30

2 Addressing Unique Technical Issues in Transportation Design-Build

Introduction

This publication is a Design-Build Done Right™ Deeper Dive. Vetted through contributions from Owners, designers, contrac- Deeper Dives build on concepts outlined in various other DBIA tors, lawyers and academia, this document is a comprehensive primers. Speci cally, this document builds on the following: guide for owners and design-build teams on some of the most pressing issues in transportation design-build delivery. As with • Design-Build Done Right™ Universally Applicable Best Practices all DBIA documents, broad industry input from diverse perspec- tives helps ensure that our guidance is written to ensure success • Transportation Sector Design-Build Best Practices for all – both owners and practitioners.

These documents, and numerous other design-build resources, As the design-build industry continues to evolve, this Deeper Dive are available for download at www.dbia.org. will also evolve, expanding to add new topics or altered content to t industry needs and the current state of practice. DBIA recognizes that there are real-world di erences among design-build market sectors (e.g., transportation, water/waste- DBIA intends to continually update our portfolio of publications, water, federal projects and building facilities), and that issues tools and other resources so that design-build stakeholders will speci c to one sector may not apply in another. As such, DBIA have access to leading-edge information that will allow them to expects that users of design-build in the transportation sector accomplish Design-Build Done Right™. will bene t from having more detailed guidance on certain considerations and areas of risk that should be carefully addressed early in the design-build process. The following key areas are the focus of this publication:

• Use of Alternative Technical Concepts (ATCs)

• Right-of-way Acquisition

• Utilities Management

• Maintenance of Tra c (MOT)

• Environmental Analysis and Permitting

3 Addressing Unique Technical Issues in Transportation Design-Build

Use of Alternative Technical Concepts (ATCs) in Transportation Design-Build A DESIGN-BUILD INSTITUTE OF AMERICA PUBLICATION

Introduction An ATC found to be acceptable to the Owner can then be incorporated into the proposal and considered in the nal selection Design-build project delivery introduces schedule, cost and tech- process. It is important to note that an Owner may place a nical e ciencies to the development of transportation projects. conditional approval on an ATC, which after award may require One way in which projects can signi cantly bene t from the new further vetting by the Owner and design-build team. However, dynamics of integrated design and construction is by allowing an ATC – even with conditions to the approval – will most often the submission and incorporation of approved Alternative be viewed as less risky by the proposer, allowing them to o er a Technical Concepts (ATCs) into proposers’ submissions during the better price to the Owner. The ATC process allows for an e cient procurement process. way to vet innovative solutions during the pre-award phase, when the Owner will realize the maximum bene t. In contrast, Owners are required to deliver large, complex infrastructure proj- vetting solutions post award, when such solutions would gener- ects at the best value to their constituents. As the construction in- ally otherwise have to be brought forward as value engineering dustry continues to recognize the many advantages of best value proposals by the winning team, means the Owner will generally awards, compared with contracts historically being awarded to realize only a portion of the savings. Allowing the evaluation of the lowest responsive bidder, it is critical to have mechanisms in innovative ideas only post award could introduce delays and po- the procurement process that allow proposers to di erentiate tential con icts in the design; or worse, the ideas will not surface their best value solution to the project. Allowing proposers to at all due to the complications of trying to incorporate them into demonstrate their approach to add value to the project through an already winning proposal, which can result in the Owner and the use of ATCs is one very important tool for Owners to be able end-users likely receiving less than the best value. to document that di erentiation. This allows the Owner to evaluate potential innovation, as well as the level of commitment the Design-build has been demonstrated to be the project delivery proposer is bringing to the project, at an early stage in project method of choice for successful transportation projects for over development, often requiring minimal additional investment by 20 years. While design-build allows for the Owner to contract the Owner. with a single entity to design and construct the project, the procurement process does not always allow for variances from the The Alternate Technical Concept (ATC) process, coupled with pro- original program or design criteria (deviations from speci cation) prietary one-on-one meetings, provides a venue for proposers provided by the Owner in the RFP documents. and Owners to discuss innovative solutions/ideas in a con dential setting. The ATC concepts may be associated with design ATCs allow industry to provide innovative solutions to the criteria changes, alternate design solutions for nearly any project stakeholders’ concerns, while still working within the original component, construction methods, operations and/or mainte- programming requirements and design intent (RFP Documents). nance functions or material selection – to name just a few areas The use of ATCs allows the competing proposers to invest in where ATCs may bring value to a proposed project solution. identifying alternate solutions of equal or better value prior to submission of the proposal that bene t the Owner and their stakeholders.

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An Owner can recognize the added value the ATC brings to the Background project, including the full value of any savings realized by an approved ATC, at the time of proposal submission. This allows the In 2014, DBIA published Universal Design-Build Best Practices Owner to more fully bene t from the best value selection process and associated Implementing Techniques. As implied, these implemented. It is important to note that some ATCs may not Best Practices and Implementing Techniques are universal bring a direct cost savings, but still add signi cant value to the across all market sectors: Private, Federal, Water/Wastewater project in the form of reduced risk, lowered future maintenance and Transportation. In an e ort to provide continued guidance cost (life cycle cost improvement), enhanced delivery schedule on Best Practices, in 2015, the DBIA Transportation Committee or other forms of indirect savings to the project Owner/end users. identi ed several design-build delivery disciplines within the The Owner may realize one or more of the following additional transportation sector that are commonly considered higher risk bene ts from the incorporation of accepted ATCs into a winning or disciplines with unique consideration in design-build delivery. proposal: The disciplines are:

• Improved schedule. • Alternative Technical Concepts

• Cost savings. • Right-of-Way

• Reduced environmental or community impacts. • Utilities

• Reduced right-of-way and utilities impacts. • Maintenance of Tra c

• Reduced or eliminated project risk. • Environmental Permitting and compliance

• Improved project quality and performance. In the fall of 2015, DBIA published transportation-speci c Implementing Techniques that support the Universal Best • Better coordination/integration with stakeholders, traveling Practices and Implementing Techniques to be considered by public, safety and/or third party utilities. Owners and design-build teams in procurement (including planning), contract language and post-award phases of a project • Reduced operating and maintenance costs (improved life for the above disciplines. These additional transportation-spe- cycle costs). ci c Implementing Techniques, when used in conjunction with the universal DBIA Best Practices publication, provide industry At the same time, the proposer should anticipate the likelihood with a road map for the best opportunity to be successful on of receiving an improved technical rating of their proposal under design-build projects. various criteria in a best value evaluation that comes with a more competitive price, a true win/win situation. This is particularly To build on the success of the prior publications and to respond to true when compared to a Value Engineering Change Process comments received at the 2015 DBIA Transportation Conference, (VECP) that occurs post award, where savings from innovative DBIA has established additional guidance and further consider- ideas are typically shared among the parties. ations to supplement the transportation-speci c Best Practices and Implementing Techniques pamphlet published in 2015. These latest additional guidance and further considerations do not add to the Best Practices or Implementing Techniques; rather, they provide more detail on how to successfully implement an individual Best Practice or Implementing Technique.

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Additional Alernative Guidance/Further Technical Concept Considerations: Implementing As a follow-up to the 2014 and 2015 work in Universal and Techniques Transportation speci c Best Practices and Implementing Techniques, DBIA has prepared this White Paper presenting Published by DBIA additional guidance and further considerations to be considered with the Best Practices and Implementing Techniques published with Additional in 2015. This e ort is intended to provide our members and the design-build industry with proven successfully delivered Guidance/Further approaches to project delivery. Considerations The additional guidance and further considerations materials developed herein generally fall into three categories: Procurement

1. Additional guidance or steps to take for best use of a Best 1. Implementing Techniques: Practice or Implementing Technique; Owners should develop ATC guidelines that de ne the process 2. Further clari cation of a published Best Practice or in which ATCs are reviewed, evaluated and accepted. This is Implementing Technique; especially important for Owners with limited sta resources. In addition, on signi cantly large complex projects, these guide- 3. Further considerations or areas of importance that were lines can help steer the process productively towards the desired not considered to be as critical as those identi ed in the original areas of innovation and maximize the opportunities for the Transportation speci c “Implementing Techniques,” but that if Owner to achieve positive results. (DBIA Trans BP I.1.k) understood or followed will be bene cial to project delivery. a. Owners should develop their design-build The published Implementing Techniques are used below as the procurement with the goal of minimizing the use baseline with reference to where the reader may nd them in of prescriptive requirements and maximizing the the Transportation Best Practices Publication. The additional use of performance-based requirements, which will guidance and further considerations are presented beneath allow the design-build team to meet or exceed the the Implementing Techniques. Each is presented by the 3 major Owner’s needs through innovation and creativity. phases of the design–build process; procurement, contract If prescriptive requirements are included, Owners language and post award (project execution). should take the design to the minimum level required to obtain major approvals required for project development, and consider other means that encourage design exibility, such as allowing: (a) shortlisted proposers to propose ATCs; and (b) the design to deviate from the project con guration de ned in the preliminary design, within speci ed parameters. (DBIA Trans BP I.2.c)

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b. Proposers should be encouraged to submit ATCs that demonstrate the overall value the ATC brings to do not compromise project quality or intent, and the project with the deviations.) that allow proposers to provide input to the Owner regarding new ideas, innovations or concepts that v. Impacts – Discussion of potential impacts may not have been re ected in the RFP documents. including environmental impacts (favorable (DBIA Trans BP I.2.j) and unfavorable) identi ed on appropriate environmental documents (especially with 2. Additional Guidance/Further Considerations regard to the impacts and commitments of the EIS and ROD), community and stakeholder a. Owners should consider and encourage a broad array impacts, improved safety and life-cycle project of ATCs, and not limit approval of ATCs to just those and infrastructure costs (including impacts on that reduce costs. cost of future operations, maintenance and repairs). b. Owners should provide the proposers their legislative or corporate authority to use both DB and ATC vi. History – A detailed description of other projects processes in the Criteria Documents (RFP Documents). where the proposed ATC has been used under comparable circumstances, the success of such c. Identify clearly what is required to be submitted and usage, and the names and contact information the format for review of an ATC. Typical categories to of project Owners that can con rm such be considered in the review might include: statements. (Note: an ATC concept may not have been used on a project; Owners should consider i. Description – Includes schematic drawings or ATCs even if there is no history.) other appropriate descriptive information (i.e., product details such as speci cations, tolerances, vii. Risks – A description of reduced or added risks to special provisions, tra c analysis). the Owners, design-builders, and stakeholders associated with implementing the ATC. ii. Usage – Where and how the ATC would be used on the project. viii. Costs – Estimate of the implementation costs savings to the project. iii. Deviations – References to any requirements within the project’s RFP Documents that d. The Criteria Documents (RFP) should de ne the levels are inconsistent with the proposed ATC, an of approval for ATCs. Common levels include: explanation of the nature of the proposed deviation and a request for approval of such i. Accepted – this indicates the ATC as presented is deviations or a determination that the ATC is acceptable. consistent with the requirements of the RFP documents. ii. Accepted with conditions – this indicates the ATC may be accepted if certain conditions identi ed iv. Analysis – An analysis justifying the use of with the conditional acceptance are met. (This the ATC and why the deviations from the often leads to a lower project risk vs staying with requirements of the RFP Documents should the RFP approach without the incorporation of be allowed. (It is particularly important to the ATC concept.)

7 Addressing Unique Technical Issues in Transportation Design-Build

iii. Not accepted in the current condition – this g. When deviations from the design concepts speci ed indicates the ATC may be accepted if certain in the request for proposals are prohibitive, the conditions are met that are identi ed with the Owner should explain to proposers the reasons for conditional denial. specifying certain design concepts/con gurations and why some design features cannot be changed. iv. Denied. ATC concept may not be resubmitted in a revised context. (This may often be because, i. The Owner determines what types of deviations for certain reasons, the subject project element will be allowed or disallowed, and clearly must be built as de ned in the RFP. The Owner describes them in the RFP Documents/Criteria can help all parties eliminate the lost time Package. It is important to expressly state where associated with ATC with no chance of approval variances will not be allowed, to avoid wasted being prepared by clearly delineating within e orts for both the proposers and Owner’s sta the RFP any project elements that MUST remain in preparation and review of ATCs. If a particular unchanged.) area of the project has been preapproved by key stakeholders, and there is no option to accept v. Accepted but not an ATC – this indicates the any variance on that project element, then ATCs proposal is allowed by contract and therefore is would not be allowed for only those discrete not considered an ATC. project elements with such constraints, and this should be stated as such in the RFP Documents. e. Conditional approvals are commonly used to expedite the timelines of the procurement process. A h. The ATC evaluation and approval process must remain conditional approval allows for two primary bene ts: proprietary and con dential to not only encourage, but also to ensure, that proposers pursue the most i. The design-build team is not required to e ective enhancements and cost solutions prior continue to progress an ATC design concept to submission. An ATC evaluation process that is during the proposal for further detailed e ectively managed will feature true con dentiality evaluation. on an equal playing eld with all proposers, in combination with clearly articulated evaluation ii. The Owner may still receive added value where criteria; there should be very little risk of the ATC the proposers can evaluate the risk associated process being the basis for an award protest by an with the conditional ATC versus the solution unsuccessful proposer. presented in the RFP Documents/Criteria Package they are trying to modify, and price that i. While this process requires more interface with risk accordingly, often at a lower overall cost to the proposers during the pre-award phase, it the Owner. allows the Owner to use the marketplace to provide alternate solutions and bring signi cant f. Typically, ATCs which deviate from the RFP Documents innovation to a project. In lieu of having one are only approved when the Owner determines that team potentially providing added value after the proposed deviations are equal to or better than award in a design-build low bid or in a design- the end product de ned in the RFP Documents/ bid-build format using value engineering, the Criteria Package and are permitted by the project ATC process used in a design-build best value constraints. award process allows multiple teams to provide added value for a relatively small investment

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by the Owner during the proposal preparation i. One-on-one meetings to discuss ATCs in phase of the project. principle before formally making submissions for full evaluation. ii. An ATC proposal of a signi cant nature may require concurrence of stakeholders, such ii. Submitting a shortened version of the ATC as FHWA, Corps of Engineers, municipalities evaluation package “conceptual ATCs” that and/or other third parties. The Owner should provides the fundamental components to discuss the process and associated risks related generally evaluate the ATC (generally a brief to acceptance of the ATC with the proposer in narrative scope description and one or two advance and get their approval to engage the concept plans to present key elements). a ected parties in the ATC evaluation process. It is critical that, should this become necessary, iii. Use of “industry days” to share overarching the Owner must bind those stakeholders to the project goals and solicit input from the same level of con dentiality. stakeholders regarding challenges and risks, as well as opportunities for improvement. i. To help assure the con dential nature of the ATC process, the Owner’s core evaluation team should be l. If an ATC submission is approved, the proposer may kept to as small a group as possible. Each evaluation elect to incorporate the approved ATC into their committee member should be bound to a non- proposal or not. A proposer should be required to disclosure agreement throughout the RFP process. clearly indicate within their proposal submission which ATCs have been incorporated in their technical j. Once an Owner has determined they want to and price submissions. include an ATC process in their solicitation, it is very important that they have the proper resources i. Only ATCs that are accepted, or accepted with available to evaluate the ATC e ectively and in a conditions, should be allowed to be included. timely fashion. Due to the often-compressed nature The submitted ATCs should be included in the of the RFP process, it should be a goal to have all conformed contract at the time of award. ATCs evaluated and disposition determined in no more than two weeks. Owners should also allow the proposers adequate time after ATC acceptance or Contract denial to complete their Proposals based on those determinations. Depending on the project scope, 1. Implementing Techniques: this may require the Owner to assemble subject matter experts in multiple technical disciplines, as a. No ATC-speci c procurement implementing well as subjects such as ROW, MOT, environmental techniques (refer to Additional Guidance/Further permitting and operation and maintenance. Considerations below). k. Owners with limited resources for reviewing ATCs can 2. Additional Guidance/Further Considerations: use one of the following techniques to minimize the overall e orts to evaluate ATCs: a. Ensure ATCs that are stipulated to be included with the proposal review are incorporated into the Contract.

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Post Award

1. Implementing Techniques:

a. No ATC-speci c post-award implementing techniques (refer to Additional Guidance/Further Considerations below).

2. Additional Guidance/Further Considerations:

a. All incorporated ATCs should be tracked to ensure they are captured in nal design drawings.

b. Incorporated ATCs may require modi cation to the schedule of values or payment system used on the project.

c. The design-builder should be bound to deliver the project, including the stated ATCs, and not be entitled to contract modi cations (without mutual agreement of the parties) if the proposer determines, after contract award, that they cannot deliver the project with the accepted ATCs that were used by Owner as the basis of award. In this case, they must deliver the original RFP scope at no increase in cost to the Owner, unless subsequent approvals needed for the ATC to advance have been unreasonably withheld or otherwise a ected by a third party outside the control of the successful proposer.

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Right-of-Way Acquisition in Transportation Design-Build A DESIGN-BUILD INSTITUTE OF AMERICA PUBLICATION

Introduction and design phases. Each variable may a ect the decision of which party is more appropriately suited to perform the right-of Design-build project delivery introduces schedule, cost and way services. technical e ciencies to the development of transportation projects. One area that can signi cantly bene t from the new Considering that all projects are unique, caution should be exer- dynamics of integrated design and construction is right-of way cised in treating all design-build projects the same and taking a (ROW) acquisition. speci c stance on a single party (Owner or design-build team) performing right-of-way services for all projects. With variables In the evaluation of project risks on transportation projects, two from nance to design and permitting a ecting this decision, items usually identi ed are right-of-way cost and the associated there is not a “one solution ts all projects “approach. time required for acquisition. These risks are inherent in the acquisition of any right-of-way process and are not a function of DBIA suggests taking into consideration the information the project delivery method, although e ciencies and innova- presented in this White Paper, in addition to DBIA Universal tions in the process may be realized using design-build. Best Practices in the three major phases of the design–build process: procurement, contract language and post award (project First and foremost, one should recognize that the process of execution). purchasing property from – in most cases – an unwilling seller is often challenging and complicated. In addition, the procedural and legal measures required by the Federal Highway Administration’s (FHWA) Uniform Relocation Assistance and Background Real Property Acquisition Policies Act of 1970, as amended, and associated with property owner education, acquisition or con- In 2014, DBIA published Universal Design-Build Best Practices demnation2 and tenant relocation involve a number of sequen- and associated Implementing Techniques. As implied, these Best tial activities which often create a prescriptive and prolonged Practices and Implementing Techniques are universal across timeline. all market sectors: Private, Federal, Water/Wastewater and Transportation. To provide continued guidance on Best Practices, Experience has demonstrated that right-of-way acquisition and in 2015, the DBIA Transportation Committee identi ed several relocation services (right-of-way services), herein de ned as design-build delivery disciplines within the Transportation sector the procedural way property is purchased and the relocation that are commonly considered higher risk or disciplines with settlement developed and administered, can be successfully per- unique consideration in design-build delivery. The disciplines are: formed by either an Owner or a design-build team. In deciding on which party (Owner or design-build team) is best suited for • Alternative Technical Concepts these tasks, numerous considerations as listed in the material below, should be evaluated as right-of-way acquisition is a ect- • Right-of-Way ed by numerous variables within the project nance, planning

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• Utilities 1. The additional guidance and further considerations materials developed herein generally fall into three categories: • Maintenance of Tra c 2. Additional guidance or steps to take for best use of a Best • Environmental Permitting and compliance Practice or Implementing Technique;

In the fall of 2015, DBIA published transportation-speci c 3. Further clari cation of a published Best Practice or Implementing Techniques that support the Universal Best Implementing Technique; Practices and Implementing Techniques to be considered by Owners and design-build teams in procurement (including Further considerations or areas of importance that were not planning), contract language and post-award phases of a project considered to be as critical as those identi ed in the original for the above disciplines. These additional transportation-spe- Transportation speci c “Implementing Techniques,” but that if ci c Implementing Techniques, when used in conjunction with understood or followed will be bene cial to project delivery. the universal DBIA Best Practices publication, provide industry with a road map for the best opportunity to be successful on The published Implementing Techniques are used below as the design-build projects. baseline with reference to where the reader may nd them in the Transportation Best Practices Publication. The additional To build on the success of the prior publications and in re- guidance and further considerations are presented beneath sponse to comments received at the 2015 DBIA Transportation the Implementing Techniques. Each is presented by the three Conference, DBIA has established additional guidance and major phases of the design-build process: procurement, contract further considerations to supplement the transportation-spe- language and post award (project execution). ci c Best Practices and Implementing Techniques pamphlet published in 2015. These latest additional guidance and further considerations do not add to the Best Practices or Implementing Techniques; rather, they provide more detail on how to successfully implement an individual Best Practice or Implementing Technique.

Additional Guidance/Further Considerations: As a follow-up to the 2014 and 2015 work in Universal and Transportation-speci c Best Practices and Implementing Techniques, DBIA has prepared this White Paper presenting additional guidance and further considerations to be considered with the Best Practices and Implementing Techniques published in 2015. This e ort is intended to provide our members and the design-build industry with proven successfully delivered approaches to project delivery.

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Right-of-Way costs of relocations so as to reduce contingency that will otherwise be included in the contract price. (DBIA Implementing Trans. BP I.2.g)

Techniques 2. Additional Guidance/Further Considerations: Published by DBIA a. As part of the project Criteria Documents (RFP with Additional Documents), the Owner should provide current mapping, tied to survey control, with accurate Guidance/Further parcel and property information. Such information is essential for determining impacts and costs Considerations associated with property acquisition, relocations, structure demolition, environmental abatement, septic systems, well abandonment and right-of- Procurement way services (appraisals, reports, negotiations, settlements, title searches/opinions, eminent domain, 1. Implementing Techniques: attorney costs, etc.).

a. Owners should evaluate and identify the appropriate b. As part of the project Criteria Documents (RFP), party to acquire right-of-way (“ROW”) and relocate parcels with environmental contamination should be utilities as part of the project. (DBIA Trans. BP I.1.j) disclosed.

b. Owners should be closely involved in the right-of- c. As part of the project Criteria Documents (RFP), highway acquisition (ROW) and take appropriate steps risk parcels which have a major impact on cost and/or to reduce ROW risk for the project. If the project schedule should be identi ed. envelope is su ciently de ned prior to start of the procurement, the Owner should: (a) clearly de ne d. The Owner should be responsible for the eminent the existing ROW boundaries; (b) provide expected domain process. Costs associated with this process are dates for ROW acquisitions a ecting the construction also commonly borne by the Owner. schedule (if the Owner will be responsible for the acquisitions); and (c) provide other information e. In identifying the numerous variables and risks enabling the proposers to understand how the ROW associated with right-of-way, four key questions acquisition process interrelates with the construction should be initially addressed in the development of schedule. When ROW acquisition is the responsibility design-build projects: of the design-builder, or when the ROW needed for the project may vary based on the nal project i. Will the right-of-way cost be a direct pass- design, the Owner should clearly specify the scope through to the Owner? of the design-builder’s responsibilities and identify the procedures that the design-builder must follow ii. Will the Owner or design-builder acquire the with respect to acquisitions. The Owner should retain right-of-way? responsibility for paying ROW acquisition costs and

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iii. How will the ROW acquisition party’s (Owner or viii. Project design – Increase in progression of design-builder) goals and objectives be aligned design, known right-of-way boundaries and to correspond with those of the other party? current Owner surveys, purchasing more right- of-way than needed, reducing design-build iv. What provisions should be included in the team’s ability to innovate. contract to address cost and schedule risk allocation? ix. Utilities – Easements or potential additional takings. f. Regardless of the party providing right-of-way services (Owner or design-build team), speci city x. Acquisition/relocation Costs – Appraisals, regarding each step in the right-of-way acquisition meetings, closings, mediations, surveys/maps/ process, documentation requirements, required plats, legal fees, potential delays to project submittals/approvals/hold points, de ned durations schedule and incentives. (if any), each party’s responsibility, operating thresholds and approval authority should be provided h. Owner involvement to be de ned in the Criteria in the Criteria Documents (RFP). Documents (RFP) should include:

g. The following variables should be considered when i. De ning right-of-way cost and schedule determining the party responsible for ROW services: provisions. Cost provisions should address whether the property/relocation costs are a i. State statutes and regulations. direct pass-through cost to the Owner or to be included in a lump sum proposal inclusive of cost ii. Financial Plan – Funding source, availability and schedule risks; of funding compared to project sequencing, certainty of the right-of-way costs. ii. De ning who will perform the right-of-way acquisition and relocation services; iii. Permitting – Percent of design needed to secure permit requirements. iii. Assigning a capable right-of-way manager to the project who is empowered to make nal iv. Land use – Dynamics of development, types of decisions; parcels (residential, government, recreational, agricultural, parks, commercial, etc.). i. Acting as nal oversight agency with early and frequent involvement throughout the acquisition v. Relocations – Number of relocations, di ering process, an Owner typically retains the only rights to types of relocations (industrial, manufacturing, acquisition through eminent domain. residential, etc.) and availability of equivalent facilities. j. Owners should identify di cult parcels early in the planning process and consider advance acquisitions vi. Project delivery schedule. to facilitate project delivery.

vii. Resources – Owner’s in-house resources and/or k. Considering the sizeable risks associated with experience of consultant industry. property and relocation settlements, litigation cost and potential jury awards, the Owner should assume

14 Addressing Unique Technical Issues in Transportation Design-Build

nancial risk of the property and relocation costs, iii. What is the Owner’s aptitude for being unless these nancial risks can be quanti ed, or an innovative in their right-of-way approach? incentive cost structure established. iv. What motivates or incentivizes the Owner’s l. When ROW acquisition is the responsibility of the resources to meet the design-build team’s Owner and Notice to Proceed (NTP) is contingent on schedule? all ROW being acquired, the Owner should provide time-relief provisions in the event ROW acquisition is v. Is the Owner receptive to receiving ATCs delayed, delaying NTP. concerning ROW? m. When ROW acquisition is the responsibility of the p. As the Owner assigns the right-of-way services to the Owner and all ROW will NOT be acquired prior to the design-build team, the Owner’s cost responsibility Notice to Proceed, the Owner should include an ROW can increase, and control of cost is reduced; however, acquisition schedule and time relief measures for schedule accountability is also reduced. delays in the contract agreement. q. When assigning the acquisition and relocation n. As the Owner assumes responsibility for the services to the design-build team, provisions should right-of-way services, they gain control over cost be taken to align the services with the Owner’s responsibility; however, they take on project schedule project objectives. As most Owners utilize design- accountability. build to reduce costs and accelerate project schedules, some questions to address are: o. When an Owner assumes responsibility for the acquisition and relocation services, provisions should i. Will property costs be a direct pass-through to be taken to align these services with the design- the Owner, and if so, what contract provisions build team’s project objectives. Considering that entice or encourage the design-build team to the design-build team is charged with generally save the Owner money during right-of-way designing to a prede ned lump-sum project budget settlements? with (typically) an aggressive schedule, the Owner should integrate their right-of-way services to ii. Is the design-build team encouraged, and complement the design-build team’s e orts and not willing to make, design changes to reduce right- hinder production or innovation. Some questions the of-way costs? If so, at what stage of the design Owner should address are: process? What amount of right-of-way savings is worth modifying the plans and potentially i. Is the Owner willing to make direct design impacting the project schedule? changes to reduce right-of-way costs, and if so, at what stage of the process? How are cost and iii. What prevents the design-build team from schedule impacts balanced? focusing only on schedule and pursuing more eminent domain cases? With legal fees, attorney ii. Is the Owner willing to increase design and/or fees, court and trial costs, interest on escrow construction costs to reduce right-of-way costs and typically greater settlement awards during and ultimately total project costs? mediation/jury trials, what do eminent domain settlements cost the Owner, and how can the

15 Addressing Unique Technical Issues in Transportation Design-Build

design-builder reduce or potentially share in Contract these potential savings? 1. Implementing Techniques: iv. What checks and balances are in place to control cost? a. Owners should, consistent with their overall procurement strategy and enabling authority, r. In instances where the property and relocation evaluate and use appropriate contractual incentives settlement costs are passed to the design-builder, that facilitate the alignment of the performance of it is important to have a high degree of certainty their design-build teams with the Owner’s project of ROW and relocation scope and costs. Cost risks goals. Incentives that should be considered include can be tempered by the Owner in assuming cost solutions that reduce the project’s ROW needs. (DBIA responsibility upon reaching a prede ned threshold Trans. BP II.2.a) dollar amount (per parcel, square foot or project), or by allowing the design-build team to share in the b. The contract should clearly specify the respective ROW cost savings to a de ned threshold. responsibilities of the Owner and design-builder in the areas of design, permitting, ROW, environmental s. Regarding property costs associated with easements mitigation measures, improvements that will be and property acquisition, Owners should consider owned by third parties, and utility relocations. (DBIA the risk to design-build teams and the project Trans. BP II.2.c) before assigning cost responsibility. Due to the risks associated with ROW as identi ed above, if price risks c. The contract should clearly de ne the rules of are to be placed on the design-builder, consideration engagement with stakeholders that will be involved should be given to providing an estimated price per in project design or construction, including for square foot where the design-build team is at risk. improvements that will be owned or operated by third parties, utility relocations, and ROW t. To capitalize on the bene ts and innovations available acquisitions. The contract should also identify any with the design-build process, the acquisition other contractors that the Owner anticipates will be team’s goals and objectives should be aligned with working on or near the project and de ne the rules of the project goals and objectives. For example, the engagement with those contractors. (DBIA Trans. BP right-of-way acquisition team may be directed to II.2.g) accelerate purchasing properties to coincide with an aggressive project schedule, with the understanding 2. Additional Guidance/Further Considerations: that higher settlements and/or more property may be acquired through eminent domain. a. Provisions should be included in the contract to clarify each party’s role in the right-of-way process u. Regardless of the party providing ROW services, and address cost and schedule risk allocation. ensure high-quality appraisals are developed by certi ed appraisers; consider appraisals by b. The contract should also provide speci city regarding independent bodies; and establish a fully transparent each step in the right-of-way process, documentation /cooperative acquisition approach. requirements, required submittals/approvals/hold points, known scheduled durations for reviews and acquisition process durations, each party’s responsibility, operating thresholds and approval

16 Addressing Unique Technical Issues in Transportation Design-Build

authority with latitude to negotiate amicable g. When possible, Owners should consider including settlements. provisions that allow the design-builder to identify priorities for acquisition. c. If the Owner provides the right-of-way services, the Owner should document the right-of-way acquired i. Owners should establish contract provisions prior to contract execution along with the status of all to allow for innovation and/or incentives for remaining parcels and relocations. reduction in right-of-way, number of parcels acquired, number of relocations and number of i. The Owner should also provide a schedule for condemnations. delivering the remaining right-of-way, along with contract language addressing appropriate ii. Owners should establish contract provisions relief if the right-of-way schedule is not that allow property Owner incentives for early obtained. settlements and/or relocations.

ii. When appropriate, the Owner should allow the design-build team the ability to provide a Post Award right-of-way acquisition/relocation priority list to coincide with construction schedule. 1. Implementing Techniques: d. Parcels that have a high risk or long lead time for a. The Owner and design-builder should develop acquisition and/or relocation and could potentially processes that enable key stakeholders (e.g., have a major impact on the project should be clearly government agencies, utility and property Owners identi ed. Parcels with known environmental and third-party operators) to interface directly with contamination, along with anticipated abatement the design-builder and its design professionals plans/responsibility, should be disclosed. on signi cant elements of the work. Among the processes that might be considered are the use of e. Any restrictions within the project right-of-way special task forces to address issues related to ROW should be clari ed – installation of design-build acquisition, utility relocation and environmental team facilities, wasting of materials, use of on-site permitting that will engage key stakeholders into the materials, etc. The contract should detail the design- process. (DBIA Trans. BP III.3.c) build team’s exibility or restrictions in revising the project footprint, along with their responsibility for b. The design-builder should identify early action associated permitting/National Environmental Policy items that will reduce the potential for future delays, Act (NEPA) documentation. All known utilities should including: (a) identifying challenging ROW issues; (b) be provided during the contracting phase, along with ordering long lead items; (c) expediting geotechnical procedural methods, compensation and acquisition and utility investigations; and (d) developing responsibility, for utility easements. relationships with utility Owners and other key stakeholders (DBIA Trans. BP III.4.e) f. The contract should reference the right-of-way process to include documentation requirements, 2. Additional Guidance/Further Considerations: submittals/approvals/hold points and approval authority. a. When utility relocation and/or right-of-way acquisition are included as a responsibility of the

17 Addressing Unique Technical Issues in Transportation Design-Build

design-build team, Owner guidance, continuous g. Start interactions with, and education of, the Owner support and the inclusion of contract impacted property owners early in the planning incentives may lead to increased e ciencies and cost process and pursue risky parcel acquisition and reductions. relocations early.

b. During post award, provisions should be established h. Take advantage of the Public Meetings to engage to promote clear communication, transparency and the impacted property owners, collect contact information-sharing regarding right-of-way status. information and provide both project and right-of- way education. i. Implement the use of a tracking report or GIS application to keep parties abreast of i. Provide three-dimensional plans or visualizations acquisition/relocation status for each parcel detailing property impacts. is encouraged. This information should be discussed at each project meeting while right- of-way is being acquired.

c. Design-builders should consider special task forces or interdisciplinary teams to address issues and nd solutions related to ROW acquisition, utility relocation and environmental permitting that will engage agencies, utilities and property owners into the process.

d. A protocol for timely review of right-of-way submittals, approvals, settlements and eminent domain packages should be established.

e. Regardless of the party providing right-of-way services, assign and integrate a right-of-way manager, with decision authority, within the Owner project oversight team. This individual should be knowledgeable about how the project design may a ect right-of-way costs and how right-of-way/ design changes may a ect project schedule.

f. Parties should value right-of-way costs as a project cost, similar to construction cost, with the ability to innovate or expand design and construction e orts to save right-of-way costs. Parties should be open to making design exceptions to reduce project costs, such as adjusting the limits of access control and including ROW as a potential ATC.

18 Addressing Unique Technical Issues in Transportation Design-Build

Utilities Management in Transportation Design-Build A DESIGN-BUILD INSTITUTE OF AMERICA PUBLICATION

Introduction DBIA suggests taking into consideration the information presented in this deeper dive, in addition to DBIA Universal Best Practices, Design-build project delivery introduces schedule, cost and tech- in the three major phases of the design-build process: procure- nical e ciencies to the development of transportation projects. ment, contract language and project execution (post award). One area that can signi cantly bene t from the new dynamics of integrated design and construction is utility protection, design, improvement and relocation. Many transportation Owners have utility facilities in which they own: intelligent tra c systems Background (ITS/ATMS), ramp metering, closed circuit televisions (CCTV), tolling facilities; and storm water systems. However, some utility In 2014, DBIA published Universal Design-Build Best Practices facilities are owned by a third party: some by governmental and associated implementing techniques. As implied, these Best agencies, some by quasi-governmental agencies, with the major- Practices and implementing techniques are universal across ity being owned by private companies. These utility facilities all market sectors: Private, Federal, Water/Wastewater and include some of the same facilities listed above, as well as water, Transportation. To provide continued guidance on Best Practices, sewer, telephone, electrical communications and data, natural in 2015, the DBIA Transportation Committee identi ed several gas, cable and the like. In addition, third parties – such as petro- design-build delivery disciplines within the transportation sector leum and railroad companies – may introduce additional utility that are commonly considered higher risk or disciplines with facilities (e.g., petroleum pipelines, switching facilities) that are unique consideration in design-build delivery. The disciplines are: within a transportation project’s impact footprint. • Alternative Technical Concepts Typically, Owners provide a signi cant amount of information in the Criteria Documents (RFP Documents) for use in preparing • Right-of-Way proposals. Information may include draft utility agreements, memorandums of understandings, subsurface utility engineer- • Utilities ing (SUE) information, utility owner record documents (as- builts), and utility owner standard speci cations or performance • Maintenance of Tra c requirements. The degree to which the information is contractual – versus reference information – can vary. • Environmental Permitting and compliance

An Owner may elect to provide limited to none of the utility In the fall of 2015, DBIA published Transportation Sector Design- information identi ed above in the criteria documents (RFP); Build Best Practices that include transportation-speci c imple- however, design-builders will price this risk accordingly in their menting techniques that build from the Universal Best Practices proposals. and implementing techniques to be considered by Owners and design-build teams in procurement (including planning), contract language and project execution phases of a project. These

19 Addressing Unique Technical Issues in Transportation Design-Build

additional transportation-speci c implementing techniques, The published implementing techniques are used below as the when used in conjunction with the universal Best Practices, baseline with reference to where the reader may nd them in provide industry with a road map for the best opportunity to be the Transportation Best Practices Publication. The additional successful on design-build projects. guidance and further considerations are presented beneath the implementing techniques. Each is presented by the three To build on the success of the prior publications and to respond to major phases of the design-build process: procurement, contract comments received at the 2015 DBIA Transportation Conference, language and project execution. DBIA has established additional guidance and further considerations to supplement the Transportation Sector Best Practices and implementing techniques pamphlet published in 2015. These latest additional guidance and further considerations do Utilities not add to the Best Practices or implementing techniques, rather they provide more detail on how to successfully implement an Management individual Best Practice or implementing technique. Implementing Techniques Additional Published by DBIA Guidance/Further with Additional Considerations: Guidance/Further DBIA has prepared this deeper dive presenting additional Considerations guidance and further considerations to be considered with the Transportation Best Practices and implementing techniques. This e ort is intended to provide our members and the design-build industry with proven, successfully delivered approaches to project delivery. Procurement

The additional guidance and further considerations materials 1. Implementing Techniques: developed herein generally fall into three categories, a. Owners should evaluate and identify the appropriate 1. Additional guidance or steps to take for best use of a Best parties to acquire right-of-way (ROW) and relocate Practice or implementing technique; utilities as part of the project. (DBIA Trans. BP I.1.j)

2. Further clari cation of a published Best Practice or b. Owners should be actively involved and take implementing technique; appropriate steps to reduce project risks relating to utility relocation, including: (a) developing risk- 3. Further considerations or areas of importance that were mitigation strategies and evaluating how best to not considered to be as critical as those identi ed in the original assign risks associated with utility relocation; (b) transportation-speci c “implementing techniques” but if including, where appropriate from a risk-mitigation understood or followed will be bene cial to project delivery. perspective, an allowance in the contract for utility relocation cost instead of requiring a lump sum; and,

20 Addressing Unique Technical Issues in Transportation Design-Build

to the extent reasonably possible (c) negotiating iv. The Owner should perform accurate location and securing, before the RFP is released, agreements methods to designate existing subsurface with utility owners and stakeholders that establish utilities to provide two-dimensional horizontal the parameters for work to be performed by the information for utilities that are known to exist design-builder. Utility agreements should clearly but may not have surface features within the de ne divisions of responsibilities and, when work is project limits. This should be considered as a being performed by the private utility, should include minimum level of information in lieu of simply schedule commitments that can be relied upon by providing utility owner record information for the design-builder. (DBIA Trans. BP I.2.h) facilities without surface features to reduce the need for the design-builder to price risk. c. Owners should perform appropriate front-end tasks (e.g., geotechnical investigations, environmental v. In order to resolve discrepancies and to present assessments, subsurface utility and other applicable more accurate information in selected areas surveys) to enable the Owner to: (a) develop a of potential con ict, the Owner may carry realistic understanding of the project’s scope and out vacuum excavation or other potholing budget; and (b) furnish proposers with information techniques to expose selected utilities to obtain that they can reasonably rely upon in establishing three-dimensional information. their price and other commercial decisions. (DBIA Trans. BP I.3.a) b. Owners should provide Criteria Documents (RFP) that address environmental concerns, storm 2. Additional Guidance/Further Considerations: water facilities, utility impacts and other project characteristics (in addition to ROW) without a. The Owner should perform a Subsurface Utility advancing the design to a level that sti es innovation Engineering (SUE) program. The following and best value. suggestions are provided for a SUE program and depend on the complexity and risks associated with a c. Owners should participate in open meetings, speci c project: in advance of the procurement, to meet with stakeholders and provide advance notice of relocation i. As part of the key stakeholder identi cation activities and secure utility agreements – whenever process, the Owner should identify utility possible before the RFP is released. The purpose of owners that have facilities within the project these meetings is to: limits or may be impacted by the project. i. Provide the proposed project scope, concept ii. As part of appropriate front-end tasks, the plans and schedule. Owner should obtain eld survey to identify visible above ground utility features and plot ii. Receive pertinent as-built or other existing resulting information. utility records information.

iii. The Owner should compare utility owners’ record iii. Discuss potential con icts and strategies to information (as-builts) with the survey features avoid them. information and resolve discrepancies, if the information does not agree. iv. Reach an agreement with the utility owners on inclusion and administration of any new utilities

21 Addressing Unique Technical Issues in Transportation Design-Build

design/construction and/or any existing utilities Contract relocation design/construction as a part of the overall transportation project design-build 1. Implementing Techniques: contract. a. Owners should, consistent with their overall v. Obtain construction/relocation schedule from procurement strategy and enabling authority, utility owners for any work not included in the evaluate and use appropriate contractual incentives transportation design-build contact and include that facilitate the alignment of the performance of in the Criteria Documents (RFP). their design-build teams with the Owner’s project goals. Incentives that should be considered include vi. If allowed, de ne the utility company desired schedule, quality, maintenance of tra c, reduced betterments. environmental impacts, community relations, utility relocation and solutions that reduce the project’s d. The Owner should determine if any prior rights exist ROW needs. (DBIA Trans. BP II.2.a) (e.g., whether the utility is in its current position by permit with the owner [DOT, etc.], is in its current b. The contract should clearly specify the Owner’s role position by easement, if the utility owner owns the during project execution, particularly relative to: (a) property or if the utility owner has expansion rights). the process for the design-builder reporting to and communicating/meeting with the Owner; (b) the e. Owners should consider including an allowance in Owner’s role in acting upon design and other required the contract for utility relocation costs. submittals; and (c) the Owner’s role, if any, in Quality Assurance/Quality Control. Additionally, the contract f. Owners are encouraged to develop risk-mitigation should clearly specify the respective responsibilities strategies and evaluate how best to assign risks of the Owner and design-builder in the areas of associated with utilities relocation. design, permitting, ROW, environmental mitigation measures, improvements that will be owned by third g. If allowed by the Criteria Documents (RFP), the parties and utility relocations. (DBIA Trans. BP II.2.c) design-build team should meet with utility owners prior to submitting price proposals to ensure the c. The contract should clearly de ne the rules of scope of work is understood. engagement with stakeholders that will be involved in project design or construction, including for h. The Owner should support, and proposers should use improvements that will be owned or operated Alternative Technical Concepts (ATCs) for avoidance of by third parties, utility relocations, and ROW utilities or other construction approaches to bene t acquisitions. The contract should also identify any the project relative to utility relocations or protect other contractors that the Owner anticipates will be in-place mitigation. working on or near the project and de ne the rules of engagement with those contractors. (DBIA Trans. BP i. The Owner may wish to treat impacted railroads II.2.g) similar to impacted utility owners by following these additional guidance/further clari cations, as d. The contract language should address risk allocation applicable to railroad work. when unexpected conditions (including subsurface conditions, utilities and hazardous materials) are encountered. (DBIA Trans. BP II.2.h)

22 Addressing Unique Technical Issues in Transportation Design-Build

e. The contract should clearly identify the design- i. De nition of responsibility for design and builder’s submittal requirements for utility and construction work, and costs, of each utility. other third-party work, emergency response plan, subsurface utility engineering validation, utility ii. Schedule commitments. plans and con ict matrix, including record drawing requirements if applicable (DBIA Trans. BP II.2.i) iii. Submittal requirements and review timelines.

2. Additional Guidance/Further Considerations: iv. Respective utility governing speci cations.

a. Clearly de ne in the Criteria Documents (RFP) the f. Owners should include in the Criteria Documents responsibilities of the design-build team. The design- (RFP) utility owner speci cations. build team should be responsible for coordinating the project construction with all utilities that may be g. The Criteria Documents (RFP) should be clear about a ected. rules of engagement of utility companies during the proposal period. b. The Owner should develop a preliminary con ict matrix showing all possible utility con icts. This h. The contract language should clearly indicate the involves comparing depicted utilities information Owner’s involvement or noti cation process, if any, with proposed plans (highway, runway, railway, dock, with respect to communication and coordination bridge, drainage, MOT, etc.). with third parties.

c. Should the Owner decide not to prepare and i. The Owner should clearly identify design-build provide advance existing utility information (utility submittal requirements and provide utility owners identi cation matrix, SUE, utility agreements), the speci cations and performance requirements in the contract language should clearly specify the design- Criteria Documents (RFP). build team responsibility and timeline for submitting a preliminary utility status report that includes a j. The contract language should clearly specify if there listing of all utilities located within the project limits are restrictions placed upon the contractor’s ability to and a con ict evaluation and cost responsibility perform work on third party property or facilities, or determination for each utility. In this case, a “utility if time restrictions apply. relocation allowance budget” is highly recommended. k. Owners should consider the added sensitivity d. Owners should consider incentivizing design-build associated with railroad facilities. It is recommended teams to nd ways to protect utilities, as opposed to that railroad grade crossing permits and all railroad relocating them. Incentives should be clearly de ned coordination be de ned by the Owner during the in the Criteria Documents. permit process.

e. When utility agreements cannot be negotiated and l. The Owner should be open to early utility relocation secured as outlined in implementing technique I.2.h, and improvement opportunities. prior to RFP release, the Owner should develop and provide draft utility relocation agreements with utility owners. Utility agreements should contain:

23 Addressing Unique Technical Issues in Transportation Design-Build

Project Execution utility companies to assess and explain the impact of the project construction. The Owner 1. Implementing Techniques: should be invited to all meetings.

a. The Owner and design-builder should develop ii. The design-build team should initiate early processes that enable key stakeholders (e.g., coordination with all utilities located within the government agencies, utility and property owners project limits. and third-party operators) to interface directly with the design-builder and its design professionals d. Design-builders should consider special task forces on signi cant elements of the work. Among the to address issues related to utility relocation that will processes that might be considered are the use of engage utility companies into the process. special task forces to address issues related to ROW acquisition, utility relocation and environmental i. The Owner, design-build team and utility permitting that will engage key stakeholders into the owners should establish a protocol for open process. (DBIA Trans. BP III.3.c) communication, decision-making and partnering speci c to utility relocations and b. The design-builder should identify early action impacts. items that will reduce the potential for future delays, including: (a) identifying challenging ROW issues; (b) ii. The design-build team should ensure that ordering long lead items; (c) expediting geotechnical there are neither con icts with the proposed and utility investigations; and (d) developing improvements, nor con icts among any of the relationships with utility owners and other key utility’s relocation and impact plans. stakeholders. (DBIA Trans. BP III.4.e) e. Owners should make an early determination of 2. Additional Guidance/Further Considerations: incentives to promote the incentive behavior desired. The design-build team must develop and verify a a. The design-build team should establish their con ict matrix depicting all utilities information with responsibility regarding coordination of utilities by the proposed improvements. The resulting matrix contacting a ected utilities early in project execution. should show records of the physical location of each con ict, the name of the utility involved, the nature b. The design-build team should strongly consider of the con ict and action needed. Analysis of the maintaining a competent and knowledgeable matrix will determine which con icts can be readily utility coordinator on the team through design and resolved, which ones are questionable and require construction. additional information, and which con icts cannot be resolved. c. Owners should schedule a meeting early in the project execution phase to introduce the f. The design-build team should make all reasonable design-builder to the third parties to develop e orts to design the project to avoid con icts with communications, responsibilities and schedules utilities and minimize impacts where con icts cannot regimens. be avoided.

i. The design-build team should coordinate and g. The design-build team should avoid the need for conduct utility review meetings with all a ected additional temporary construction easement and/

24 Addressing Unique Technical Issues in Transportation Design-Build

or additional right of way needs and notify the Owner immediately in case additional right-of-way needs are unavoidable due to utilities con ict and relocation. h. The design-build team should provide all utility owners with a complete set of design plans as soon as the plans have reached a level of completeness adequate to allow them to fully understand the project impacts. i. The design-build team should verify the prior rights of each utility’s facilities if claimed by a utility owner. j. The design-build team must accurately show the nal location of all utilities on the as-built drawings.

25 Addressing Unique Technical Issues in Transportation Design-Build

Maintenance of Traffic (MOT) in Transportation Design-Build A DESIGN-BUILD INSTITUTE OF AMERICA PUBLICATION

Introduction • Alternative Technical Concepts

Design-build project delivery introduces schedule, cost, and • Right-of-Way technical e ciencies to the development of transportation projects. One area that can signi cantly bene t from the new • Utilities dynamics of integrated design and construction is Maintenance of Tra c (MOT), a.k.a. Maintenance and Protection of Tra c • Maintenance of Tra c (MPT). MOT and the proposed construction staging are critical elements which – when coordinated properly – allow for many • Environmental Permitting and Compliance design-build projects to be executed e ectively and e ciently within close proximity to live tra c, while minimizing impact In the fall of 2015, DBIA published transportation-speci c to the traveling public. MOT can often serve as the driving Implementing Techniques that support the Universal Best force behind the creative engineering and construction-based Practices and Implementing Techniques to be considered by solutions that are a hallmark of design-build project delivery. Owners and design-build teams in procurement (including Thus, it is critical that MOT is clearly de ned in design-build planning), contract language and post-award phases of a project transportation projects. DBIA suggests taking into consideration for the above disciplines. These additional transportation-spe- the information presented in this White Paper, in addition to ci c Implementing Techniques, when used in conjunction with DBIA Universal Best Practices, in the three major phases of the the universal DBIA Best Practices publication, provide industry design–build process: procurement, contract language, and post with a road map for the best opportunity to be successful on award (project execution). design-build projects.

To build on the success of the prior publications, and to respond to comments received at the 2015 DBIA Transportation Background Conference, DBIA has established additional guidance and further considerations to supplement the transportation-spe- In 2014, DBIA published Universal Design-Build Best Practices ci c Best Practices and Implementing Techniques pamphlet and associated Implementing Techniques. As implied, these Best published in 2015. These latest additional guidance and further Practices and Implementing Techniques are universal across considerations do not add to the Best Practices or Implementing all market sectors – Private, Federal, Water/Wastewater and Techniques; rather, they provide more detail on how to success- Transportation. To provide continued guidance on best practices, fully implement an individual Best Practice or Implementing in 2015, the DBIA Transportation Committee identi ed several Technique. design-build delivery disciplines within the transportation sector that are commonly considered higher risk, or disciplines with unique considerations in design-build delivery. The disciplines are:

26 Addressing Unique Technical Issues in Transportation Design-Build

Additional Maintenance Guidance/Further of Traﬃ c Considerations: Implementing As a follow-up to the 2014 and 2015 work in universal and trans- Techniques portation-speci c Best Practices and Implementing Techniques, DBIA has prepared this White Paper presenting additional guid- Published by DBIA ance and further considerations to be considered with the Best Practices and Implementing Techniques published in 2015. This with Additional e ort is intended to provide our members and the design-build industry with proven, successfully delivered approaches to Guidance/Further project delivery. Considerations The additional guidance and further considerations materials developed herein generally fall into three categories: Procurement

1. Additional guidance or steps to take for best use of a Best 1. Implementing Techniques: Practice or Implementing Technique; a. No MOT-speci c procurement implementing 2. Further clari cation of a published Best Practice or techniques (refer to Additional Guidance/Further Implementing Technique; or Considerations below)

3. Further considerations or areas of importance that were 2. Additional Guidance/Further Considerations: not considered to be as critical as those identi ed in the original transportation-speci c “Implementing Techniques,” but that if a. MOT development and application is a responsibility understood or followed will be bene cial to project delivery. typically assigned to the design-build team, within limits de ned by the Owner in the RFP documents. The published Implementing Techniques are used below as the baseline, with reference to where the reader may nd them in b. The criteria documents (RFP documents) should the Transportation Best Practices Publication. The additional provide clear criteria with an emphasis on exible guidance and further considerations are presented beneath criteria whenever possible. Criteria can focus on the Implementing Techniques. Each are presented by the three level of service (LOS) requirements and travel times major phases of the design–build process: procurement, contract through the corridor, or can dictate the number of language and post award (project execution). lanes to remain operational at di erent times of the day and seasons.

i. Allowing exibility in MOT is increasingly important if there are schedule incentives.

ii. Restrictions regarding allowed lane closure times or rental costs should be stated clearly in the criteria documents (RFP).

27 Addressing Unique Technical Issues in Transportation Design-Build

c. Alternative Technical Concepts should be allowed if k. Responsibility for providing tow truck services, and proposer can demonstrate performance requirements breakdown or accident clearing in the work zones are met. occupied by the design-builder should be clearly established. d. Criteria Documents (RFP) should clearly indicate responsibilities of the Owner and design-builder l. Responsibility of snow removal and road repair regarding adjacent roads, residents, businesses, requirements should be clearly de ned in the Criteria sidewalks, bike paths, shared use paths and the like. Documents (RFP). The need for temporary snow storage, if any, should also be de ned. e. The Owner should indicate the minimum required public outreach with regard to major tra c pattern m. Due to the critical impact MOT has on a design-build shifts or switches between stages, and clearly de ne transportation project, scoring the MOT scheme who is responsible for this outreach and associated separately, and not including it under another timing requirements. general or technical category, should be considered.

f. MOT is a driving force in determining technical n. Weighting of the evaluation should re ect the solutions, construction cost and project duration. importance of MOT to the project. It is not uncommon If the Criteria Documents (RFP) do not make the for MOT to be the di erentiator between proposers. requirements clear, the design-builder teams should submit questions to the Owner for clari cation, and o. Any interaction with de ned evacuation routes Owners should modify the criteria Documents (RFP) should be provided to the proposing teams by the accordingly to provide clarity. Owner within the Criteria Documents (RFP).

g. If the work zone is such that the MOT requirements must be prescriptive, provide su cient detail to the Contract design-build proposers and provide an explanation as to why ATCs may not be allowed. 1. Implementing Techniques:

h. Criteria Documents (RFP) should identify all impacted a. Owners should, consistent with their overall agencies, stakeholders and concurrent adjacent procurement strategy and enabling authority, projects which may require coordination for lane evaluate and use appropriate contractual incentives closures and tra c shifts. that facilitate the alignment of the performance of their design-build teams with the Owner’s project i. Restrictions or coordination and compliance with goals. Incentives that should be considered include current toll/fare stakeholders should be clearly schedule, quality, maintenance of tra c, reduced de ned. environmental impacts, community relations, utility relocation and solutions that reduce the project’s j. Compliance and adaptability with current network ROW needs. (DBIA Trans. BP II.2.a) tra c management schemes should be de ned. b. The contract should clearly identify the scope of the design-builder’s responsibilities for maintenance of tra c (e.g., agging) and tra c management constraints a ecting the construction schedule (e.g.,

28 Addressing Unique Technical Issues in Transportation Design-Build

lane closure restrictions, lane rental, maintenance of c. During post award, monitor commitments made access, special events). (DBIA Trans. BP II.2.k) with respect to lane closures, detour time frames and other MOT commitments. 2. Additional Guidance/Further Considerations d. Partnering amongst all stakeholders is critical to a. Clearly indicate any lane rental requirements, lane resolving any MOT issues/constraints throughout the closure restrictions and associated costs for not project. adhering to restrictions. e. Changes to proposal level plans and approach should b. Identify required submittals and associated review be allowed if demonstrated to be bene cial to the times. project and/or the public.

c. To get the full bene t of design-build, contract f. Teams should be aware of di erences in permit language that encourages innovation in execution or MOT standards during project execution if the should be used. project goes through multiple jurisdictions (di erent standard specs/supplements to Manual of Uniform d. Ensure commitments made with respect to work Tra c Control Devices, permit renewal timeframes, schedules, lane closures, detour time frames and etc.). other MOT commitments are included with the conformed contract.

Post Award

1. Implementing Techniques:

a. The Owner and design-builder should agree upon clear, realistic and expeditious submittal and review/ approval processes that are in harmony with the parties’ schedule and other project-speci c goals. (DBIA Trans BP III.4.b)

2. Additional Guidance/Further Considerations

a. When utilizing the design-build delivery method, maintenance of tra c is a responsibility that is normally placed on the design-build team. Allowing maximum exibility with schedule incentives can motivate design-build teams to execute projects at maximum e ciency and cost.

b. The entire team should commit to timely review of submittals.

29 Addressing Unique Technical Issues in Transportation Design-Build

Environmental Analysis and Permitting in Transportation Design-Build A DESIGN-BUILD INSTITUTE OF AMERICA PUBLICATION

Introduction each activity occurring sequentially, and the NEPA document is written to help guide the construction alternative selected Design-build project delivery introduces schedule, cost and for the project. However, this approach limits innovation and technical e ciencies to the development of transportation value engineering potential, even in design-bid-build delivery. projects. One area that can signi cantly bene t from the new Design-build essentially has schedule e ciencies throughout the dynamics of integrated design and construction is environmental delivery process, as activities can be overlapped, which reduces analysis and permitting. Design-build provides opportunities to the overall project schedule. facilitate and streamline environmental analysis and permitting for delivery of transportation projects. National Environmental Due to the fast-track nature of design-build delivery and its Policy Act (NEPA) planning, environmental permitting and post- inherent di erences from traditional project delivery, the envi- award environmental management (e.g., NEPA re-evaluations ronmental analysis and permitting process needs to be modi ed and permit modi cations) are often identi ed as the critical and enhanced to accommodate the awarded design-builder’s path for delivery of federally funded projects. For projects that proposed design (e.g., allow innovation in the solution) and do not utilize federal funding, most state transportation Owners avoid potential complications. Any changes to project scope, are required to follow their own state’s environmental planning design, and impact area can cause disruptions to this critical path process, which is often very similar in scope to the NEPA process. and delay the overall delivery schedule. For instance, post-award On design-build projects, the environmental planning and project changes often require modi cation to environmental permitting process becomes more important to the critical path, permits and re-evaluation of NEPA planning documents that since the initiation of some project phases – such as nal design, can cause delays to the delivery of the project. Construction may ROW acquisition (generally) and construction – cannot begin be delayed while these documents are reviewed and approved. until the NEPA planning is completed and environmental permits The environmental analysis and permitting process is typically are acquired. linear, as environmental resources are identi ed and impacts are avoided or quanti ed, permitted and mitigated. All of these NEPA documents for traditional design-bid-build project delivery steps must be completed in a project area before any project can have often been very prescriptive in nature (e.g., specifying the proceed to the construction stage within that area. number of lanes to have on a highway, interchange types, ROW acquisition, etc.). Therefore, it is critical to understand that the Design-build projects must complete all required NEPA activities prescriptive approach that is often used in the environmental and environmental permitting of design-bid-build projects, analysis of design-bid-build projects, should not be applied to regardless if activities are overlapped. Environmental analysis design-build projects. This approach has been adopted for sever- activities can be grouped in the following three categories: al reasons in design-bid-build including, design will be complete before award and therefore can incorporate nal environmental commitments and possibly as important, to help the reviewing agencies review process and ultimately award a permit. Therefore, the design-bid-build process is typically linear, with

30 Addressing Unique Technical Issues in Transportation Design-Build

1. Identi cation of environmental resources and coordination Background with regulatory agencies; In 2014, DBIA published Universal Design-Build Best Practices 2. NEPA Process (quanti cation and mitigation of and associated Implementing Techniques. As implied, these environmental impacts); Best Practices and Implementing Techniques are universal across all market sectors: Private, Federal, Water/Wastewater 3. Acquiring environmental permitting. and Transportation. In an e ort to provide continued guidance on Best Practices, in 2015, the DBIA Transportation Committee The remainder of this White Paper describes these activities, how identi ed several design-build delivery disciplines within the they are di erent for design-build delivery, major issues for each Transportation sector that are commonly considered higher risk activity and opportunities to address the design-build di erenc- or disciplines with unique considerations in design-build delivery. es in each area. The disciplines are:

The NEPA guidelines allow state transportation owners to adver- • Alternative Technical Concepts tise and award a design-build contract prior to the completion of the NEPA document, provided that the following conditions are • Right-of-Way met: • Utilities 1. Only preliminary design is advanced until the completion of the NEPA process; • Maintenance of Tra c

2. The design-builder must not prepare the NEPA document; • Environmental Analysis, Permitting and Compliance

3. The design-build contract must include appropriate In the fall of 2015, DBIA published transportation-speci c provisions for mitigation measures; “Implementing Techniques” that support the “Universal Best Practices and Implementing Techniques” to be considered by 4. The design-build contract must include termination Owners and design-build teams in procurement (including provisions for the no-build alternative; and planning), contract language and post-award phases of a project for the above disciplines. These additional transportation-spe- 5. The design-builder may be requested to provide information ci c “Implementing Techniques,” when used in conjunction with about mitigation measures. the Universal DBIA Best Practices publications, provide industry with a road map for the best opportunity to be successful on The NEPA process is wide-reaching and is based on evaluating design-build projects. alternatives and balancing environmental impacts across alternatives and resources. Individual statutes governing the special To build on the success of the prior publications and to respond to study areas of air, water, parks, historic properties, rare and en- comments received at the 2015 DBIA Transportation Conference, dangered species and other resources are narrowly de ned. This DBIA has established additional guidance and further consider- narrow de nition is further complicated by a lack of guidance on ations to supplement the transportation-speci c Best Practices how to compare and balance impacts across areas. This, coupled and Implementing Techniques pamphlet published in 2015. with inconsistent mandates and variations and rigid interpreta- These latest additional guidance and further considerations do tions in policy and regulations, compounds the time required for not add to the Best Practices or Implementing Techniques; rather, the overall NEPA planning process. they provide more detail on how to successfully implement an individual Best Practice or Implementing Technique.

31 Addressing Unique Technical Issues in Transportation Design-Build

Additional • Identi cation of Environmental Resources (procurement).

Guidance/Further • Coordination with Environmental governing agencies Considerations: (procurement, post award). As a follow-up to the 2014 and 2015 work in universal and trans- • NEPA Quanti cation (procurement, contract, post award). portation-speci c Best Practices and Implementing Techniques, DBIA has prepared this White Paper presenting additional guid- • Mitigation of Environmental impacts (procurement). ance and further considerations to be considered with the Best Practices and Implementing Techniques, published in 2015. This • Environmental Management (post award). e ort is intended to provide our members and the design-build industry with proven, successfully delivered approaches to • Environmental Documentation (procurement, post award). project delivery. By understanding these hurdle topics and applying proven Best The additional guidance and further considerations materials Practices, Implementing Techniques and additional guidance/ developed herein generally fall into three categories: further considerations, design-build teams and Owners can help improve the outcome of their projects with respect to environ- 1. Additional guidance or steps to take for best use of a Best mental screening, sensitivity and compliance. These topic areas Practice or Implementing Technique; will be used as further identi ers for presentation of additional guidance and further considerations under the applicable 2. Further clari cation of a published Best Practice or phase of the project for which they apply. The Implementing Implementing Technique; Techniques presented in the DBIA Transportation Best Practices publication are used as the format for the overall presentation 3. Further considerations or areas of importance that were of materials. Please note, several Topic Areas de ned above may not considered to be as critical as those identi ed in the original apply to one or multiple phases of the project; e.g., procurement Transportation-speci c “Implementing Techniques,” but that if and contract or contract and project execution. understood or followed will be bene cial to project delivery.

The published Implementing Techniques are used below as the baseline, with reference to where the reader may nd them in Environmental Best the Transportation Best Practices Publication. The additional guidance and further considerations are presented beneath the Practices Published Implementing Techniques. Each is presented by the three major phases of the design–build process: procurement, contract by DBIA language and post award (project execution). Procurement

Topic Areas 1. Implementing Techniques:

In environmental analysis and permitting, the following areas a. Owners should perform an adequate search to have surfaced as hurdles to successful delivery of environmental identify necessary environmental permits for the services in design-build delivery: project in order to avoid potential permit issues with

32 Addressing Unique Technical Issues in Transportation Design-Build

the RFP conceptual design. If necessary, prior to proper identi cation of environmental resources and issuance of the RFP, a risk management strategy tied potential environmental impacts. to the permitting process should be considered. (DBIA Trans. BP I.2.k) d. Depending on project risks and potential for innovation, the environmental permits should be b. Owners should perform appropriate front-end tasks obtained by the party who can best manage the risks. (e.g., geotechnical investigations, environmental Environmental permitting is a critical schedule task assessments, subsurface utility and other applicable on most transportation projects. Design-build allows surveys) to enable the Owner to: (a) develop a exibility in the permitting process, as Owners have realistic understanding of the project’s scope and options on how and when to acquire required permits budget; and (b) furnish proposers with information to reduce schedule risks. that they can reasonably rely upon in establishing their price and other commercial decisions. (DBIA e. Owners have identi ed that early initiation of Trans. BP I.3.a) environmental permitting tasks that are known to have a long lead time in the conceptual phase will 2. General Additional Guidance/Further Considerations: reduce their impact on the critical path of the project.

a. One of the bene ts of design-build is to improve f. It is preferable for transportation Owners to assign upon the Owner’s initial solution presented in the the permitting responsibility to the party best able Criteria Documents (RFP Documents). This is done to manage the permitting risks. Therefore, there through, among other things, inviting several are three strategies that Owners employ to obtain proposers to provide solutions and then encouraging environmental permits: (1) Acquire the permit in them to think outside the box to deliver a better advance of advertising the RFP; (2) Acquire the project through innovation – often through the permit after procurement; and (3) Require the Alternative Technical Concepts process (ATC). A large design-builder to prepare and acquire permits. All obstacle to innovation is restrictive environmental three of these options are viable to Owners, and one processes or design requirements introduced by or multiple options can be used on the same project, Owners through the permitting process. Allowing for based on di ering complexities associated with the a design that has room for exibility and innovation permitting. Owners should identify and select a is preferred in the NEPA process. permit-acquisition strategy that best ts a speci c project or permit requirement. b. Owners should provide procurement documents that address environmental concerns, without i. Owners should consider acquiring the most advancing the design to a level that sti es innovation critical permits, or those with the highest risk, and best value. This means that the focus of the prior to the advertisement (RFP issuance) of NEPA document should be to clear a footprint for design-build projects. Remember that permits the construction of the project and not to design obtained in advance of issuance of the RFP for a a solution to the project’s need and purpose. This design-build project are typically procured with approach often leads to cost savings for the project. plans that are less than 30 percent complete.

c. Risk identi cation in regard to the environmental a ) Owners can take the approach of acquiring planning and permitting process relies heavily on non-construction related permits in advance to reduce risk to design-build

33 Addressing Unique Technical Issues in Transportation Design-Build

teams and to expedite the design-build iv. Provide any acquired permits with the Criteria team’s ability to move to construction. Documents (RFP).

b ) Responsibility can be transferred to the 3. Topic-Speci c Area Additional Guidance/Further design-builder for any amendments and Considerations changes that must be approved by the sponsoring or regulatory agency based on a. Identi cation of Environmental Resources nal design. i. Identifying environmental resources and c ) Owners can also retain modi cation potential impacts to these environmental responsibility for non-construction related resources is the basic step to environmental permits. studies and permit acquisition. This step, among other things, identi es the permits required ii. Owners can acquire environmental permits for the project. Proper identi cation, or lack after procurement of the design-builder and thereof, in uences the design-build team’s coordinate the impacts and permit requirements ability to manage the project environmental based on the design-builder’s proposed design. risks and e ciently design and construct the project. Implications could be realized in lack of a ) Obtaining permits after procurement may innovation, design risk and schedule risk. reduce or eliminate the schedule bene t of obtaining the permit in advance. ii. Environmental permits vary in complexity and the amount of time needed to acquire them. b ) On the other hand, the Owner can Identifying required permits early in the project bene t from the additional exibility the development allows Owners to determine design-builder has to provide inputs while how best to manage the acquisition of various nalizing the project design. environmental permits.

iii. Although often the Owner can best manage iii. The Criteria Documents (RFP documents) permitting risks, there are numerous situations should clearly state restrictions or requirements where the design-builder can properly for protection, design and/or monitoring for accept this risk and should be assigned the the elements identi ed in the environmental responsibility. On design-build projects, documents, including: potential impacts Owners are increasingly choosing to transfer to streams and wetlands, endangered the responsibility for preparing and obtaining species habitat, historic buildings or environmental permits to design-build teams, properties, archaeology resources, air quality, especially those permits that are dependent environmental justice (social) and increased on the nal design solution proposed by the noise volumes. design-builder. With respect to high-risk permits, the design-builder is usually in a better iv. During identi cation of environmental resources, position to accept the responsibility of acquiring focus more on identi cation of project risks than any amendments and changes that must be on actual design solutions. approved by the sponsoring or regulatory agency.

34 Addressing Unique Technical Issues in Transportation Design-Build

v. Some permitting agencies may not issue v. Be mindful that regulatory agencies have nal permits until design is near completion, limited sta to review and coordinate e orts signi cantly beyond the preferable design on projects. The environmental process can be completion to issue an RFP. Owners must more time-consuming for these through the balance the design advancement to provide development of the procurement documents enough information to obtain permits, while and execution. Design-build also generally not advancing the design too far and limiting requires more collaboration, because the innovation. Progressing design beyond 30 solutions are preferably not nalized until after percent can sti e innovation and/or lead to award of the contract. This requires a window project delays while the design-builder or or box of acceptable solutions to be identi ed the Owner prepares permit modi cations for at the procurement phase that will satisfy the innovative design not covered or allowed by a needs of each agency. During initial coordination permit acquired early, but highly bene cial to between the Owner and the agency, the Owner the project. should coach the agency that there will be a third collaborating team member upon award of b. Coordination with Environmental governing agencies the contract.

i. Permitting agencies should be made aware vi. Avoid making critical decisions of the project’s that the RFP design is a baseline condition and environmental platform before engaging conceptual in nature. Provisions should be made agencies. that anticipate some future level of re nement that does not take the agency entirely by vii. Distributing a known-impacts listing to the surprise or prohibit permit resubmittals. stakeholders early in the process promotes transparency and provides early knowledge of ii. Prior to selection of a design-build team, Owners potential concerns. should work with regulatory agencies and identify all potential impacts to the environment c. NEPA Quanti cation (e.g., environmental resource impacts). i. Understand that agencies may see a need to iii. Coordination with regulatory agencies early in permit “worst case” or “multiple design option” the scoping of a project can lead to allowing scenarios, because they do not have sta to more innovation and value-driven project fully vet options and alternatives as the project solutions, because Owners can provide progresses. regulatory agencies with a range of potential acceptable solutions that satisfy project and ii. An advantage of design-build project delivery regulatory needs. is that it provides design-build teams the opportunity to propose alternate design iv. Early coordination reduces the likelihood of solutions to more e ciently deliver the project, litigation, due to the fact that stakeholders that reduce project delivery time, improve project are involved in the project decisions are more ultimate performance and reduce life-cycle costs likely to engage in problem-solving later. or provide cost savings. The opportunities for innovation may be limited if the environmental studies completed as part of the NEPA planning

35 Addressing Unique Technical Issues in Transportation Design-Build

process are limited to clearing or de ning a a ) Equally important, these agreements preferred alternative. Transportation Owners provide an essential foundation for shared should work to clear an environmental corridor, understanding and e ective working as opposed to endorsing a speci c design relationships between Owners and solution. This allows proposing design-build regulatory agencies. teams to work within that corridor without violating or reopening the NEPA document. b ) Programmatic agreements may also include Generally, it is advisable to clear as wide a recommendations to include incentives in footprint as feasible. However, this practice the contract for reducing impacts to the may not be suitable for all design-build projects. environment. There will be situations where design needs to be developed in more detail to be able to d. Mitigation of Environmental impacts identify and evaluate the signi cance of impacts to sensitive areas or other project risks. i. Regulatory agencies that are unfamiliar with design-build may have concerns that design- iii. Permitting agencies are accustomed to permits build teams may increase impacts to the and mitigation being written to mitigate for environment in an e ort for cost savings. exact impacts to the environment (e.g., a speci c design solution). ii. As part of the NEPA process, Owners are required to consider the appropriate impact mitigation a ) To be known and understood to allow strategies, such as avoidance, minimization, permitting to occur will not be available rectifying, reducing impact over time, and under design-build if the design is not compensation to impacts to the environment developed to the level of detail required for caused by transportation projects. The council of permitting. environmental quality (CEQ) requires mitigation measures to be evaluated sequentially with b ) Agencies will consider permitting for the avoidance being considered the rst option and worst-case scenario a solution, but in compensating for the impact as the nal option. these cases, they often want the level of mitigation to remain the same even if iii. Owners must work to ensure that mitigation the environmental impacts are decreased. measures do not con ict with one another and In order to avoid this strict requirement, do not limit opportunities for the design-builder provide assurances design-build teams will to provide innovation. The documentation of be required to mitigate as de ned. mitigation measures is referred to in the NEPA process as a commitment. Environmental iv. Programmatic agreements with federal and commitments can be generated under di erent state environmental agencies can streamline laws, regulations or procedures which may the development of the NEPA document by overlap. The overlap of laws, regulations providing pre-approved mitigation measures and procedures can cause challenges when for various environmental impacts. When developing commitments, as they can become programmatic agreements exist for avoiding, unclear, inconsistent or contradictory. minimizing and mitigating impacts, projects can be reviewed much more quickly.

36 Addressing Unique Technical Issues in Transportation Design-Build

e. Environmental Documentation engagement with those contractors. (DBIA Trans. BP II.2.g) i. Clearly de ne design and mitigation documentation needs to close permits. d. The contract language should address risk allocation when unexpected conditions (including subsurface conditions, utilities and hazardous materials) are Contract encountered. (DBIA Trans BP II.2.h)

1. Implementing Techniques: e. The contract should clearly establish which party has responsibility for risks associated with: (a) a. Owners should, consistent with their overall governmental approvals, including permits required procurement strategy and enabling authority, for project development; (b) any changes to the evaluate and use appropriate contractual incentives existing NEPA documents, including any NEPA re- that facilitate the alignment of the performance of evaluation; and (c) changes in law and changes in their design-build teams with the Owner’s project standards. (DBIA Trans. BP II.2.l) goals. Incentives that should be considered include schedule, quality, maintenance of tra c, reduced 2. General Additional Guidance/Further Considerations: environmental impacts, community relations, utility relocation and solutions that reduce the a. Often the responsibility of who obtains a permit project’s ROW needs. (DBIA Trans. BP II.2.a) changes from project to project. It is critical to clearly de ne the permits or portions of permits the design- b. The contract should clearly specify the Owner’s role builder will be responsible for. Generally, the Owner during project execution, particularly relative to: will understand the agency’s requirements regarding (a) the process for the design-builder reporting to details of the permit. Many permits require design and communicating/meeting with the Owner; (b) input; the contract should identify any speci cs the Owner’s role in acting upon design and other regarding the level of design required to secure required submittals; and (c) the Owner’s role in QA/ a permit. This allows design-build teams better QC. Additionally, the contract should clearly specify schedule resources required for design input. the respective responsibilities of the Owner and design-builder in the areas of design, permitting, b. Many Owners and FHWA division o ces are quick ROW, environmental mitigation measures, to assume that any proposed change to the NEPA improvements that will be owned by third parties, document requires a re-evaluation of the NEPA and utility relocations. (DBIA Trans. BP II.2.c) document. While this can be avoided by adding exibility to the NEPA document, no amount of c. The contract should clearly de ne the rules of exibility will eliminate the need to re-evaluate the engagement with stakeholders that will be NEPA document on certain projects. When feasible, involved in project design or construction, including de ne in the contract the threshold of modi cation for improvements that will be owned or operated that would trigger a re-evaluation. by third parties, utility relocations, and ROW acquisitions. The contract should also identify any c. The contract should clearly de ne the rules of other contractors that the Owner anticipates will be engagement with stakeholders that will be involved working on or near the project and de ne the rules of in project design or construction, including for improvements that will be owned or operated

37 Addressing Unique Technical Issues in Transportation Design-Build

by third parties, utility relocations and ROW wetlands within the corridor in the NEPA document acquisitions. The contract should also identify any and stating that they may be impacted by the project. other contractors that the Owner anticipates will be working on or near the project and de ne the rules of f. While it is common for Owners to use prescriptive engagement with those contractors. language in developing NEPA documents, some Owners and federal agencies commonly use d. Owners and regulatory agencies have found that broad language to describe impacts on their NEPA the consultants on design-build teams that conduct documents and corresponding “special studies.” This the coordination with the regulatory agencies have broad language creates exibility in the nal design incentives to maintain strong relationships with and construction of the project without requiring the these agencies on future design-build and design- NEPA document to be updated every time a design bid-build projects. These relationships help establish change is made. trust between regulatory agencies and the design- build team. This also promotes sharing of concerns g. The contract should de ne any environmental related on various environmental issues about the project, incentives. One way that Owners have worked to which contributes to more e cient environmental alleviate the regulatory agency concerns regarding planning and coordination between the public and the private sector involvement in post-award private sector. environmental management is to provide incentives to design-build teams to reduce environmental e. Design-build projects can bene t from use of impacts and to promote compliance with performance-based mitigation measures for environmental permits. Incentive amounts should various types of environmental impacts. There is consider what level of design was used to develop a great focus from the USDOT and transportation initial impact estimates. When impact estimates are Owners on pushing for more performance-based based on the worst-case scenario, incentives should mitigation strategies. This approach involves setting be reduced or based on a lower impact threshold performance goals for various types of environmental than identi ed in the worst case scenario. Although permit requirements. The design-build teams are not a common practice, incentives are gaining in use. then required to adhere to those performance requirements, depending on the type of permit. The 3. Topic Speci c Area Additional Guidance/Further design-builder would also become responsible for Considerations: determining actual impacts, and often the mitigation associated with those impacts, through the permit a. NEPA Quanti cation process. The goal of performance-based permitting is to identify mitigation results that regulatory i. Design-build allows a unique approach to agencies are trying to achieve, instead of permitted project delivery and the NEPA process by speci c mitigation strategies. This approach has allowing a project to be advertised and allowed design-build teams to propose changes to a awarded prior to completion of the NEPA project’s design without triggering time-consuming process. Although this practice is not commonly re-evaluations of the NEPA or state environmental utilized on design-build projects, it is allowed planning documents. For instance, one area in by federal regulations. This unique approach which Owners are gaining the ability to use a type of introduces new project risks that a no-build performance mitigation is for stream and wetlands NEPA alternative may be selected. Procuring a impacts. This is done by identifying streams and design-builder prior to completion of NEPA can

38 Addressing Unique Technical Issues in Transportation Design-Build

provide an opportunity to expedite the overall 2. General Additional Guidance/Further Considerations: delivery of the project; however, the contract should have a termination clause if the no-build a. When a project has received environmental clearance alternative is selected. and received a NEPA (National Environmental Policy Act) Record of Decision, changes proposed by the design-builder may constitute the need for a NEPA Post Award re-evaluation. Assignment of project risks associated with these proposed changes should be addressed by 1. Implementing Techniques: the Owner in the RFP and contract documents.

a. Design-builders should be familiar with the entire b. Design-builders should consider special task forces to NEPA process and its requirements as this can be a address issues related to environmental permitting critical factor if the design-builder proposes changes that will engage agencies, utilities and property to approved concepts which deviate from the owners into the process. approved NEPA documents. (DBIA Trans. BP III.1.e) c. All parties involved with environmental compliance b. The Owner and design-builder should develop should attend the project coordination meetings processes that enable key stakeholders (e.g., during the design and construction phases. government agencies, utility and property owners, and third-party operators) to interface directly with d. Protocol for timely communications among the the design-builder and its design professionals Owner, design-builder and permitting agencies on signi cant elements of the work. Among the will help establish methods for reducing delays and processes that might be considered are the use of improving quality of performance. special task forces to address issues related to ROW acquisition, utility relocation and environmental e. Owners should identify all environmental permitting that will engage key stakeholders into commitments made within the proposal and permits the process. (DBIA Trans. BP III.3.c) and work to enforce environmental compliance.

c. All parties involved with environmental compliance f. When incentives are o ered to design-build teams to should attend project coordination meetings during minimize impacts to the environment or meet certain the design and construction phases. (DBIA Trans BP mitigation and compliance metrics, consistently III.3.g) evaluate and distribute incentives.

d. Design-builders should gain an understanding of the 3. Topic Speci c Area Additional Guidance/Further Owner’s goals and should be aware that compliance Considerations: with environmental mitigation requirements and other legal requirements (e.g., a rmative action, a. Coordination with Environmental governing agencies Disadvantaged Business Enterprise) are often of critical importance to the Owner even though they i. Particularly, due to integration of design may not a ect the ultimate work product. (DBIA Trans and construction activities in design-build, BP III.3.h) coordination and collaboration among transportation owners, regulatory agencies and design-build teams can enhance environmental

39 Addressing Unique Technical Issues in Transportation Design-Build

analysis and permitting. The Owner should, persuasion) with respect to the NEPA process. immediately upon award, empower the However, the courts have repeatedly ruled that design-builder to assume the role de ned by the a re-evaluation is not a NEPA document, but contract. instead is an a rmation that the preferred alternative is still valid or a recommendation ii. Owners work to maintain strong relationships for a supplemental or updated NEPA document. with regulatory agencies as they work together Some Owners allow the design-builder to on numerous projects and will need to perform the re-evaluation, while others allow coordinate on future projects. These agencies them to perform all special study updates and need assurances the design-build teams have provide all backup information. It is important the required level of incentive that they become to note the design-builder may be the best party motivated to maintain this strong relationship. to perform the modi cation. This reduces Owner burden and places schedule responsibility on the b. NEPA Quanti cation design-builder.

i. The only real outstanding environmental risk c. Environmental Management post award in design-bid-build of the NEPA process involves contractor compliance with i. Owners should include requirements for permit requirements. Depending on nal design-build teams to develop and enforce permit timing the same risk applies in design- environmental management or compliance build. These risks are magni ed when the NEPA plans as part of the design-build contract. The document prescriptively quanti es actual environmental management plan establishes impacts anticipated based on the preliminary procedures of how to manage impacts to the design. environment from project incidences and accidents. Most design-build projects require ii. Design-builders familiar with the NEPA process the design-builder to have an environmental can help prevent designs from triggering a NEPA compliance manager on site at all times during re-evaluation. construction. The environmental compliance manager serves several important functions iii. Using exible language when describing on design-build projects, such as permit impacts to the environment in the NEPA development, contingency planning, design document can reduce the risk of needing to review, regulatory agency coordination, re-evaluate the NEPA document. Another environmental inspection and emergency measure to reduce Owner risk for re-evaluations coordination. is to require the design-builder to perform the re-evaluation. This can expedite the ii. It is increasingly common for the design-builder development of the re-evaluation and promote to provide training regarding environmental better management of the project design and aspects of the project. Training is provided to compliance with the NEPA document. Many designers and to on-site construction sta . Owners and local FHWA division o ces currently Training generally encompasses all aspects view this practice as against the federal of the environmental documents, air, water, regulation that states the design-builder must wetlands, noise, etc. not have any impact (e.g., involvement e ect,

40 Addressing Unique Technical Issues in Transportation Design-Build

d. Environmental Documentation • Colorado Department of Transportation (CDOT) has programmatic agreements with various regulatory agencies, i. Design-builders should maintain detailed such as U.S. Fish and Wildlife Services and Colorado documentation of compliance with permits Department of Natural Resources, to aid the NEPA process. during design and construction. • Michigan Department of Transportation (MDOT) utilizes ii. The Owner should con rm through audits that programmatic agreements with the Michigan Department the design-builder is maintaining appropriate of Environmental Quality and U.S. Army Corps of Engineers records of environmental permit requirement (USACE), which facilitates expediting section 404 permits. compliance. • North Carolina Department of Transportation (NCDOT) has programmatic agreements with USACE and the North Carolina Department of Natural and Cultural Resources for Appendix Section 404 permits. Owner Examples/Testimonials • NCDOT has utilized a variety of permit options on various projects. In the past, some permits were obtained by the Procurement DOT with modi cation requirements transferred to the design-build team, while other permits were considered the • Several state DOTs, such as those in Colorado, Washington responsibility of the design-build team state, Virginia, Michigan and North Carolina, have learned that adding exibility to NEPA documents can prevent the • Utah and Washington DOTs acquire all environmental-related need for NEPA re-evaluations and accomplish the goals of permits in advance of advertising to allow the design-build the project without limiting opportunities for innovative team to expedite construction, as they are not waiting for solutions proposed by design-build teams. these permits to begin construction.

• Utah Department of Transportation (UDOT) allows exibility • Maryland Department of Transportation (MDOT) requires the in the environmental planning process in areas where there design-build team to acquire any permit modi cations that is minimal risk of impacts to environmental resources. This are required based on their proposed design and requires increases the importance of properly identifying these them to take on the schedule and cost risks associated with resources early in a project’s development. the modi cation.

• Florida Department of Transportation (FDOT) regularly develops an advance noti cation (AN) package that is Contract language distributed to all project stakeholders, including regulatory agencies, early in the project development process. • Colorado Department of Transportation (CDOT) strives to de ne maximum anticipated impacts for a project in their • Washington State Department of Transportation (WSDOT) “base design,” which is the basis for the environmental has identi ed that working with regulatory agencies during planning document. This allows the design-build team to the scoping and concept phase of the project is invaluable for work within the prede ned maximum impacts without building trust, properly identifying resources and evaluating having to re-evaluate the environmental planning document. potential environmental commitments.

41 Addressing Unique Technical Issues in Transportation Design-Build

• Virginia Department of Transportation (VDOT) clears as large a design footprint as possible during the environmental planning process to provide maximum exibility for design- build innovation.

• Washington State Department of Transportation (WSDOT) works with regulatory agencies to allow maximum exibility in the environmental planning document. WSDOT describes possible construction methods and potential impacts and clears a wide project footprint in their environmental planning document. This allows the design-build team to propose innovative solutions that may not have been considered during the environmental planning without requiring the document to be re-evaluated.

Post award (Project execution)

• Many state DOTs and FHWA division o ces are quick to assume that any proposed change to the NEPA document requires a re-evaluation of the NEPA document.

42 Addressing Unique Technical Issues in Transportation Design-Build

“DESIGN-BUILD DONE RIGHT” AND CERTIFICATION

Certi cation provides the only measureable standard by which to judge an individual’s understanding of “design-build done right.”

DBIA certi cation in design-build project delivery educates owners as well as designers and builders on team-centered approaches to design and construction. Owners want successfully executed design-build projects and are looking for a demonstration of both relevant continuing education and experience – both of which can be gained through DBIA certi cation.

DBIA o ers two types of Certi cation.

Attaining the DBIA™ requires from two to six years of hands-on experience of pre and post-award design-build. Credential holders who display “DBIA” after their names DESIGN-BUILD come from traditional design and construction backgrounds; they are private or PROFESSIONAL public sector architects, engineers and construction professionals. Some attorneys and academic practitioners who specialize in design and construction generally and design-build speci cally may also ful ll the DBIA™ requirements.

Unlike the DBIA™ credential, obtaining the Assoc. DBIA™ does not require hands-on eld experience. Instead, this credential is focused on three key types of individuals who possess a di erent type of experience: (1) pre-award professionals focusing on critical aspects of the design-build process such as business development and acquisition/procurement; (2) seasoned professionals who are new to design-build project delivery, but not new to the design and construction industry; and (3) emerging professionals such as recent college graduates with relevant educational background in the AEC industry.

For more information, visit www.dbia.org/certi cation

DBIA extends thanks to all the industry leaders who helped shape this document. A special thanks is extended to DBIA’s Transportation Markets Education Subcommittee.